Other Federal Tax Changes in the New Year

The start of the new year brought several significant changes to the tax code. Though much attention has been focused on the new provisions of the Tax Cuts and Jobs Act, other federal changes took place on January 1, 2018, also worth reviewing. Particularly worth mentioning is the return of the medical device tax and the uncertain fate of several recently expired “tax extenders.” These represent relatively poor developments in tax policy, compared to many of those arising from the new tax reform law.

As of January 1, 2018, after a two-year suspension, the medical device tax has returned. Passed under the Affordable Care Act, the medical device tax is a 2.3 percent tax on the total sales of taxable medical devices at the manufacturer or wholesaler level.

The medical device tax is problematic for several reasons, as my colleagues have often pointed out. The cost of the tax falls primarily on consumers. Not only does it lead to increased health-care costs for consumers by increasing the cost of devices such as pacemakers, stents, and defibrillators, it does so in a way that is not transparent. It is built into prices of items often paid for using insurance, meaning consumers do not see how much of the tax they are paying.

The tax also causes several issues for businesses. When it first went into effect in 2013, the Internal Revenue Service acknowledged that “the medical device industry will likely face some implementation issues when the medical device excise tax goes into effect….” The medical device tax has multiple complexities, such as the need to report wholesale prices for companies that both manufacture and distribute devices, as well as the exemption of retail devices sold directly to consumers (devices like eyeglasses or hearing aids). These complexities result in additional compliance costs as businesses work to understand their liability. Another negative feature is the gross receipts tax base, which applies the tax to total sales rather than profits from sales and in doing so arbitrarily punishes companies with higher costs.

The combination of these factors could mean that reintroduction of this tax will result in less innovation and more market consolidation as firms adjust. Further, the tax could reduce employment if it raises the cost of investing in the medical device industry. These costs fall particularly hard on smaller firms and newer firms that may not have realized profits yet.

A second area of potentially worrisome policy change in the new year is the current state of temporary tax provisions, known as extenders. While the close of 2016 saw 36 temporary provisions set to expire, 2017 had just two extenders set to expire. The Airport and Airway Trust Fund excise taxes, set to expire in September 2017, were temporarily extended through March 2018. The Oil Spill Liability Trust Fund financing rate, a 9-cent per-barrel excise tax collected from the oil industry on petroleum products produced in or imported to the United States and used primarily to aid oil spill cleanup efforts, was allowed to expire at the close of 2017.

Some lawmakers are considering whether to retroactively extend 35 narrowly targeted provisions that have lapsed in recent years, many in 2016—a move that would not be advisable. Both retroactive tax changes and temporary tax provisions are poor public policy because they create confusion in the decision-making processes of individuals and businesses. Instead of renewing these, or any other provisions, on a temporary basis, Congress should thoroughly review all temporary provisions and make the good provisions permanent well in advance of expiration dates.

While several tax reform-related changes that took effect on January 1 will have positive long-term effects for individuals and businesses alike, the two aforementioned changes are less beneficial. The impact on prices, jobs, and transparency that the medical device tax reintroduces will benefit neither the medical device industry nor health-care consumers. With uncertainty remaining regarding tax extenders, and lawmakers potentially making retroactive or temporary changes, businesses and individuals may have difficulty making informed decisions for the future.

Together, these changes reveal the continued need for thoughtful review of the federal tax structure to ensure that it becomes more neutral, reliable, and efficient, not less.

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